CrimProf Blog

Next week's criminal law/procedure argument

Issue summary is from ScotusBlog, which also links to papers:

Wednesday

• Banister v. Davis: Whether and under what circumstances a timely Rule 59(e) motion should be recharacterized as a second or successive habeas petition under Gonzalez v. Crosby.

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Disaggregating Ineffective Assistance of Counsel Doctrine: Four Forms of Constitutional Ineffectiveness Eve Brensike Primus University of Michigan Law School Date Posted: 08 Nov 2019 [2nd last week]	437
2.	Dissenting Statement of Commissioner Gail Heriot in In the Name of Hate: Examining the Federal Government's Role in Responding to Hate Crimes, a Report of the U.S. Commission on Civil Rights Gail L. Heriot University of San Diego School of Law Date Posted: 13 Nov 2019 [1st last week]	401
3.	Facial Recognition and the Fourth Amendment Andrew Guthrie Ferguson University of the District of Columbia - David A. Clarke School of Law Date Posted: 25 Oct 2019 [4th last week]	158
4.	Equal Protection Under Algorithms: A New Statistical and Legal Framework Crystal Yang and Will Dobbie Harvard Law School and Harvard University - Harvard Kennedy School (HKS) Date Posted: 11 Oct 2019 [9th last week]	99
5.	Beyond Compare? A Codefendant's Prison Sentence As a Mitigating Factor in Death Penalty Cases Jeffrey L. Kirchmeier CUNY School of Law Date Posted: 21 Oct 2019 [6th last week]	99
6.	A Perfect Storm: Hong Kong - Mainland China Rendition of Fugitive Offenders 2019 Albert H. Y. Chen The University of Hong Kong - Faculty of Law Date Posted: 23 Oct 2019 [10th last week]	85
7.	Plea Bargaining, Trial-Avoiding Conviction Mechanisms, and the Global Administratization of Criminal Convictions Maximo Langer University of California, Los Angeles (UCLA) - School of Law Date Posted: 23 Sep 2019 [8th last week]	84
8.	Defending Progressive Prosecution Jeffrey Bellin William & Mary Law School Date Posted: 12 Nov 2019 [new to top ten]	73
9.	The Racial Composition of Forensic DNA Databases Erin Murphy and Jun Tong New York University School of Law and New York University School of Law Date Posted: 09 Nov 2019 [new to top ten]	66
10.	The Law of Corporate Investigations and the Global Expansion of Corporate Criminal Enforcement Jennifer Arlen and Samuel W. Buell New York University School of Law and Duke University School of Law Date Posted: 31 Oct 2019 [new to top ten]	58

Thomas on Corporate Criminals

William Robert Thomas (University of Michigan Ross School of Business) has posted Making Sense of Corporate Criminals: A Tentative Taxonomy (Georgetown Journal of Law & Public Policy, Vol. 17, No. 775, 2019) on SSRN. Here is the abstract:

 

This article proposes a taxonomy to delineate different strategies defending the extension of an ostensibly moralized practice (the criminal law) to ostensibly non-moral agents (corporations). My proposal is to classify strategies for justifying corporate criminal law into three groups: (1) Economic theories reject the unique moral character of criminal law, treating corporate criminal liability as no different than any other type of enforcement regime; (2) moral agency theories identify characteristics necessary for praise and blame and then consider whether corporate agents are capable of satisfying them; and (3) political theories take the criminal law to be a uniquely moralized legal institution, but then deny that corporate criminal liability thereby requires an account of corporate moral responsibility. While the focus of this article is to trace the contours of this conceptual distinction, I offer some tentative reasons to think that the third category — political theories — has gone undertheorized but nevertheless offers the most promising avenue for an ultimate justification of corporate criminal law.

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Ralston et al. on Experimental Study of False Confessions

Jason Ralston, Jason Anthony Aimone, Charles M. North and Lucas Rentschler (Baylor University, Baylor University - Department of Economics, Baylor University Department of Economics and Utah State University - Department of Economics and Finance) have posted False Confessions: An Experimental Study of the Innocence Problem on SSRN. Here is the abstract:

 

The innocence problem, which occurs when an innocent person is falsely accused or convicted of a crime, is impossible to study with empirical data, because “true” innocence and guilt are unobservable in the “real world.” In this study, we replicate the criminal justice system in the laboratory with real salient crimes and subjects acting in the roles of defendants, prosecutors, and jurors in order to study the innocence problem. In a controlled environment, we identify individuals who are falsely or accurately accused of a crime and track them through the plea-bargaining system. This allows us to explore how being falsely accused of a crime affects plea bargaining decisions. We find evidence for a substantial innocence problem, reflected by a high willingness of truly innocent defendants to accept plea bargains. However, they do so at a lower rate than the truly guilty suggesting preferences for truth telling, an irrelevant factor in most economic theory. We also find evidence that individual preferences over uncertainty influence plea decisions, as predicted by economic theory. Overall, we find that loss aversion has a significant positive influence on plea decisions and that the reduced propensity of the truly innocent to accept plea bargains is driven by an interaction between their preferences to avoid lying and their preferences over uncertainty.

Davis on Transnational Bribery

Kevin E. Davis (New York University School of Law) has posted Between Impunity and Imperialism: The Regulation of Transnational Bribery (New York: Oxford University Press, 2019) on SSRN. Here is the abstract:

 

When people pay bribes to foreign public officials, how should the law respond? This question has been debated ever since the enactment of the U.S. Foreign Corrupt Practices Act of 1977, and some of the key arguments can be traced back to Cicero in the last years of the Roman Republic and Edmund Burke in late eighteenth-century England. In recent years, the U.S. and other members of the OECD have joined forces to make anti-bribery law one of the most prominent sources of liability for firms and individuals who operate across borders. The modern regime is premised on the idea that transnational bribery is a serious problem which invariably merits a vigorous legal response. The shape of that response can be summed up in the phrase "every little bit helps," which in practice means that: prohibitions on bribery should capture a broad range of conduct; enforcement should target as broad a range of actors as possible; sanctions should be as stiff as possible; and as many agencies as possible should be involved in the enforcement process. An important challenge to the OECD paradigm, labelled here the "anti-imperialist critique," accepts that transnational bribery is a serious problem but questions the conventional responses. This book uses a series of high-profile cases to illustrate key elements of transnational bribery law in action, and analyzes the law through the lenses of both the OECD paradigm and the anti-imperialist critique. It ultimately defends a distinctively inclusive and experimentalist approach to transnational bribery law.

Gilbert and Thar on SOGIE Rights in Myanmar

David Gilbert and Nang Hsu Mon Thar (Australian National University (ANU) and Colors Rainbow) have posted Moving from the Shadows: Law and SOGIE Rights in Myanmar's Democratic Transition (Australian Journal of Asian Law, Vol. 20, No. 1, Article 14, 2019) on SSRN. Here is the abstract:

 

Myanmar has been undergoing a political transition since 2011, when a semi-civilian government came to power, implementing significant, albeit limited, democratic reforms. Despite initial optimism and increased civic space, successive governments have done little to address the legacy of colonial-era laws that repress gender and sexual minorities. This includes Section 377 of the Penal Code, criminalising homosexuality, and a law against ‘hiding in shadows’ that give broad powers to the police to arrest gender and sexual minorities who are in public places at night. In addition, gender and sexual minorities continue to struggle with social forms of stigma and abuse, the risks of which have increased with the rise of extremist forms of Buddhist nationalism. This article provides an overview of the current legal situation and key human rights challenges that sexual and gender minorities face in Myanmar.

Bruni & Fantin on Law Enforcement Access to Electronic Data

Alessandro Bruni and Stefano Fantin (KU Leuven - Centre for IT & IP Law (CiTiP) and KU Leuven, Centre for IT & IP Law (CiTiP)) have posted Research on the Cooperation Processes Between Industry and Law Enforcement in the Digital and Telecommunications Sectors on SSRN. Here is the abstract:

 

The present document intends to provide an overview on certain elements that should be taken into account in the legislative development of the EC’s framework on cross-border access to electronic data by law enforcement (so-called eEvidence proposal). To do so, the qualitative and quantitative analysis carried out by the KU Leuven Centre for IT and IP Law considers the current legal framework at European and Member State levels together with key judgements of the European Court of Justice. The quantitative analysis provides the outcomes of the survey that has been carried out with representatives from law enforcement agencies and competent authorities of selected countries within the EU.

Wieringa on Criminalisation of Homosexuality in Indonesia

Saskia E Wieringa (University of Amsterdam) has posted Criminalisation of Homosexuality in Indonesia: The Role of the Constitution and Civil Society (Australian Journal of Asian Law, Vol. 20, No. 1, Article 17, 2019) on SSRN. Here is the abstract:

 

Indonesia is widely regarded as a moderate Muslim country, yet over the past decade sharia-supporting Muslim groups have gained broad, popular support. LGBT people are among those groups who have faced growing intolerance. In this article I discuss the factors behind Indonesia’s creeping criminalisation of homosexuality. From late 2015 onwards, homophobic hate speech and attacks were launched, not only by conservative Muslim groups but also by Indonesian authorities. I discuss this campaign in the context of the national and international legal situation, focusing on constitutional interpretation, the promulgation of homophobic regional regulations and the role of major civil society actors, notably MUI (Majelis Ulama Indonesia, Indonesian Council of Religious Scholars) and AILA (Aliansi Cinta Keluarga, Family Love Alliance). The ongoing discussions in the legislature on the revisions of the Criminal Code will also be examined. I argue that the intermingling of religious authority, political power and conservative religious groups is undermining Indonesia’s democratic constitutional framework and the rights and freedoms guaranteed in the Constitution.

Herlin-Karnell on General Principles and EU Criminal Law

Ester Herlin-Karnell (University of Gothenburg, School of Law) has posted General Principles and EU Criminal Law (Draft chapter forthcoming in K Zeigler, V Moreno-Lax and P Neuvonen (eds), Handbook on EU General Principles, Edward Elgar 2020) on SSRN. Here is the abstract:

 

Why are general principles important in EU criminal law? The question of general principles in criminal law is an interesting one and unites two different but related discussions: one concerning the reach of general principles in EU law as such and one closely related debate on the scope of general principles in the area of criminal law. This gives rise to a third discussion, namely, whether there is anything such as ‘general principles of EU criminal law’ proper.

Kaye on The Ultimate Opinion Rule and Forensic Science Identification

David H. Kaye (The Pennsylvania State University (University Park) – Penn State Law) has posted The Ultimate Opinion Rule and Forensic Science Identification (Jurimetrics: The Journal of Law, Science and Technology Vol. 60, No. 2, Winter 2020) on SSRN. Here is the abstract:

 

For decades, scientists, statisticians, psychologists, and lawyers have urged forensic scientists who compare handwriting, fingerprints, fibers, electronic recordings, shoeprints, toolmarks, soil, glass fragments, paint chips, and other items to change their ways. At last it seems that “[t]he traditional assumption that items like fingerprints and toolmarks have unique patterns that allow experts to accurately determine their source . . . is being replaced by a new logic of forensic reporting.” With the dissemination of “probabilistic genotyping” software that generates “likelihood ratios” for DNA evidence, the logic is making its way into US courts.

Recently, the Justice Department’s Senior Advisor on Forensic Science commented on a connection between prominent statements endorsing the new logic and an old rule of evidence concerning “ultimate issues.” He suggested that “some people . . . would like to pretend that [Federal Rule of Evidence 704] doesn't exist, but it actually goes against that school of thought.” This essay considers the nexus between Rule 704 and forensic-science testimony, old and new. It concludes that the rule does not apply to all source attributions, and even when it does apply, it supplies no reason to admit them over likelihood statements. In ruling on objections to traditional source attributions buttressed by the many calls for evidence-centric presentations, courts would be remiss to think that Rule 704 favors either school of thought.

Woody on The New Insider Trading

Karen E. Woody (Washington & Lee University School of Law) has posted The New Insider Trading (Arizona State Law Journal, Forthcoming) on SSRN. Here is the abstract:

 

Pursuant to the SEC’s Rule 10b-5, in order to obtain a conviction for insider trading based upon a tipper-tippee theory, the government must prove that the tipper received a personal benefit for the tip, and that the tippee knew about that benefit. The last five years of blockbuster insider trading cases have focused on this seemingly nebulous personal benefit test, and the Supreme Court has been unable to clear the muddy waters. As a result, the parameters of insider trading remain hard to pin down, and often shift depending on the facts of the most recent case. Two terms ago, the Supreme Court, in an unsurprising 9-0 decision in Salman v. United States, reaffirmed the holding of Dirks, from which the personal benefit test arose. The Court in Salman, however, failed to elucidate the more problematic areas of insider trading, including the application of the personal benefit test if the tippee is not a trading relative or friend. Legal practitioners, legislators, and academics have offered up various solutions for the problem of having an amorphous law against insider trading, yet none have succeeded.

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Foust on Marijauana Use and Parenting

Kathryn Foust (Ohio State University (OSU), Michael E. Moritz College of Law, Students) has posted The Complicated Relationship Between Marijuana Use and Parenting (Drug Enforcement and Policy Center, No. 16, November 2019) on SSRN. Here is the abstract:

 

The intersection between marijuana and parenting is both highly controversial and largely unexplored. Despite the trend of legalization (medicinal and recreational) across the country, there is a widening discrepancy between criminal laws and child welfare policies. Even in states where marijuana is recreationally legal, a parent might still be charged with child abuse or neglect as a result of his or her marijuana use. Although second-hand marijuana smoke has proven to be a relatively low risk of harm to children, other areas of concern have not been adequately studied, such as the effects of marijuana use during pregnancy and/or breastfeeding. Despite the lack of reliable scientific studies on the impact of ingestion by children, some initial studies have shown a marked increase in frequency of accidental ingestions and resulting hospital treatment in states that have legalized marijuana. The palatability and attractiveness of “edibles” is likely the cause of this measurable and dramatic increase. Overall, parental marijuana use has been inadequately studied by science, but some reliable data is available which could be used overhaul existing children’s services policies.

Jouet on Guns, Identity, and Nationhood

Mugambi Jouet (McGill Faculty of Law) has posted Guns, Identity, and Nationhood (Nature - Palgrave Communications, vol. 5, no. 138, 2019) on SSRN. Here is the abstract:

 

The article provides a theoretical perspective on the symbolic meaning of the right to bear arms in modern America, especially among its conservative movement. Neglecting this issue, scholarship on gun symbolism has commonly focused on guns possessed by offenders in inner-cities, such as juveniles or gang members. Offering a multidisciplinary and comparative outlook, the article explains how guns have become symbols of a worldview under which armed patriots must stand ready to defend America from “tyranny,” “big government,” “socialism,” and other existential threats. In particular, the U.S. conservative movement does not merely perceive the right to bear arms as a means of self-defense against criminals, but as a safeguard against an oppressive government that “patriots” may have to overthrow by force. The article examines the hypothesis that guns foster a sense of belonging in this conception of nationhood.

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Underkuffler on Corruption

Laura Underkuffler (Cornell University - Law School) has posted Captured by Evil: The Idea of Corruption in Law on SSRN. Here is the abstract:

 

What is corruption - as a legal, cultural, and political idea? This work argues that corruption is one of the most troubled concepts in law. Contemporary western ideas of law assume that law involves knowable and articulable standards that are neutral, logical, and demystified. Corruption defies these limits. This work explores the implications of this for legal treatments of corruption and for the use of corruption as a condemnatory idea in journalistic, cultural, and political accounts.

Abman & Ford on Border Walls and Crime

Ryan Abman and Hisham S. Foad (San Diego State University and San Diego State University - Department of Economics) have posted Border Walls and Crime: Evidence From the Secure Fence Act on SSRN. Here is the abstact:

 

Despite a lack of rigorous empirical evidence, reduced crime is often touted as a potential benefit in the debate over increasing border infrastructure (i.e. border walls). This paper examines the effect of the Secure Fence Act of 2006, which led to unprecedented barrier construction along the US-Mexico border, on local crime using geospatial data on dates and locations of border wall construction. Synthetic control estimates across twelve border counties find no systematic evidence that border infrastructure reduced property or violent crime rates in the counties in which it was built.

Citron on Sexual Privacy

Danielle Keats Citron (Boston University School of Law) has posted Why Sexual Privacy Matters for Trust (Washington University Law Review, Vol. 96, No. 6, 2019) on SSRN. Here is the abstract:

 

Every generation has preferred modes of self-disclosure. Not long ago, lovers revealed their thoughts, desires, and secrets over the phone and in letters. Today, they exchange personal histories and nude photos via text and online chats. Yet no matter the era’s chosen mode of communication, the success of intimate relationships depends upon sexual privacy. Intimacy can develop only if partners trust each other to treat their self-revelations with discretion and care. Self-disclosure, however, is difficult after one’s nude photos have been posted online or one’s intimate encounters have been videotaped without permission. Individuals refrain from dating for fear that their intimate revelations will again be surveilled and exposed in unwanted ways. Sexual privacy invasions thus undermine the possibility of intimate relationships.

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Hou & Truex on Ethnic Discrimination in Chinese Sentencing

Yue Hou and Rory Truex (Department of Political Science, University of Pennsylvania and Princeton University - Department of Political Science) have posted Ethnic Discrimination in Criminal Sentencing in China on SSRN. Here is the abstract:

 

This paper presents the first analysis of ethnic discrimination in sentencing patterns in the People's Republic of China, focusing on drug cases in Yunnan province. We posit the "problem minority" hypothesis, which holds that discrimination in an authoritarian system emerges when an ethnic group becomes associated with behavior that generates social instability. On average, minority defendants in Yunnan have sentences that are about 1.5 to 8.0 months longer than Han defendants that have committed similar drug crimes. Further analysis of data from all provinces reveals that this bias is largest for groups heavily involved in the drug trade. Sentencing is particularly harsh in autonomous counties and prefectures where minorities are concentrated.

Heitmuller et al. on Corporate Registries

Frederik Heitmüller, Moran Harari and Markus Meinzer (Independent, Tax Justice Network and Tax Justice Network) have posted Regulatory Capacity of Corporate Registries in the European Union. Survey Results on SSRN. Here is the abstract:

 

This paper discusses the role that the capacity of corporate registries plays in fighting tax evasion and related crimes. It reviews the current state of research and data availability around the capacity of company registration systems. It further presents results from a new survey sent out by the Tax Justice Network to corporate registries of European member states, enhanced with data from the International Business Registers report and the Financial Secrecy Index. It provides data indicators that show potential abusive practices, compares the information that registries record about the natural persons associated with limited companies and shows data about the material and human resources of corporate registries.

Green & Roiphe on Victim Impact Proceedings for Dead Defendants

Bruce A. Green and Rebecca Roiphe (Fordham University School of Law and New York Law School) have posted Punishment Without Process: 'Victim Impact' Proceedings for Dead Defendants (FLR Online, 2019) on SSRN. Here is the abstract:

 

After Jeffrey Epstein committed suicide in jail, two judges allowed his accusers to speak in court. This article argues that the proceedings were inappropriate because the criminal case ends when the defendant dies. If the conviction and appeal are not final, there is no finding of guilt, and the defendant is still presumed innocent. Allowing accusers to speak at this time violates the principle of due process and threatens to undermine faith in judges and the criminal justice system in general. While courts are at times legally required to hear from victims of crimes, they were not allowed to do so here, where the defendant was dead and there were no contested issues of law or fact that the victims input might effect. The article concludes by discussing how the #MeToo movement may have effected the judges in these two cases and cautions that social movements like this one ought not to dictate courtroom procedures that are crafted to uphold constitutional rights and principles.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Dissenting Statement of Commissioner Gail Heriot in In the Name of Hate: Examining the Federal Government's Role in Responding to Hate Crimes, a Report of the U.S. Commission on Civil Rights Gail L. Heriot University of San Diego School of Law Date Posted: 13 Nov 2019	395
2.	Pop Culture's Influence on Recreational Marijuana Use & Legislation: A Case Study on Snoop Dogg Abby Graves Independent Date Posted: 12 Oct 2019 [5th last week]	69
3.	Closure in the Criminal Courtroom: The Birth and Strange Career of an Emotion Susan A. Bandes DePaul University - College of Law Date Posted: 30 Sep 2019	67
4.	The Problem of Algorithmic Corporate Misconduct Mihailis Diamantis University of Iowa - College of Law Date Posted: 10 Oct 2019	67
5.	Methods and Severity: The Two Tracks of Section 12 Lisa Kerr and Benjamin L. Berger Queen's University - Faculty of Law and York University - Osgoode Hall Law School Date Posted: 17 Oct 2019 [6th last week]	63
6.	Will the Supreme Court Rein in 'Excessive Fines' and Forfeitures?: Don’t Rely on Timbs v. Indiana Nora V. Demleitner Washington and Lee University Date Posted: 14 Oct 2019 [7th last week]	59
7.	The Evolving Federal Response to State Marijuana Reforms Robert A. Mikos Vanderbilt University - Law School Date Posted: 01 Nov 2019 [10th last week]	59
8.	Data Scams Roger Allan Ford University of New Hampshire Franklin Pierce School of Law Date Posted: 04 Dec 2018 [9th last week]	53
9.	Explaining Criminal Sanctions in Intellectual Property Law Irina D. Manta Hofstra University - Maurice A. Deane School of Law Date Posted: 29 Oct 2019 [8th last week]	51
10.	When Cute Becomes Criminal: Emoji, Threats, and Online Grooming Marilyn McMahon and Elizabeth A Kirley Deakin University, Geelong, Australia - Deakin Law School and Deakin School of Business and Law Date Posted: 30 Sep 2019 [new to top ten]	44